The pandemic from a lawyer’s perspective
On heroes and compulsion in the time of coronavirus
“We are all in this together” say our politicians, the pundits and the experts appearing on podiums. They tell us how important it is for all of us to take care of ourselves (wash our hands, stay home, do not congregate, physically distance, exercise in backyards) so that we can take care of others. And we are told to be deeply grateful to the heroes, those men and women—mainly women, it turns out—who do what must be done.
Who are these heroes? The daily published political ads (cast as thank yous) by the government of Ontario, tell us who they are: doctors, nurses, paramedics, personal support workers, pharmacists, police, firefighters, farmers, food processors, truck drivers, supermarket staff, cleaners, bus drivers, train operators.
What makes them heroes? Indeed, what makes anyone a hero?
Heroes are those who are willing to rescue others from peril, even if they have to put themselves at great risk. The emphasis is on ‘willing’. Our liberal capitalist legal system does not impose an enforceable duty on anyone to rescue another. That is the law. Our judges confirm this, rather colourfully:
Both priest and Levite ensured performance of any common law duty of care to the stricken traveller when, by crossing the road, they avoided any risk of throwing up dust in his wounds.
We are legally entitled to stand-by and let a baby drown in a shallow pool of water if we do not want to get our shoes wet. The only people excepted from this legal endorsement of indifference are those who are under special duties, such as the parents or guardians of the baby who have primary responsibility for children in their care. As well, a duty to rescue is imposed on the police and emergency workers called to the scene. It is their job to take risks, to make sacrifices to protect others. This is a burden they have willingly and knowingly decided to assume.
People who have not made a conscious decision to enter into contracts to risk their lives to save others could be heroes, but not because they have a duty to put themselves in danger on behalf of others. They would then have acted as they did—as true heroes—because of their humane sensibilities. Should we so describe the list of heroes paraded daily during this coronavirus crisis?
What about, say, Toronto Transit Commission (TTC) bus drivers?
On April 15, 38 TTC drivers, at two locations in Toronto, refused to work because they deemed their workplaces—busses and depots—to be unsafe. They felt there were not enough safeguards to ward off the dreaded virus. They were seeking to exercise an explicitly granted legal right not to abide by a command of their employer when the risk in doing so is too great. A legal problem arises: what is meant by ‘too great’?
The starting position is that workers all understand that any place in which they agree to work brings people, substances and equipment together. This entails elements of risk and, therefore, these workers must be taken to have agreed to be exposed to some of those risks when they took on the job. In simple terms, workers are deemed to consent to being exposed to a certain level of harm. It is agreed that those risks must not be extraordinary. For this notion of workers’ consent to risk being a justifiable rule, it is to be consent to a ‘reasonable’ risk. This is, to be sure, a slippery term but one that acknowledges that there is a limit on the level of risk that workers must be taken to have agreed-to when signing up for the job.
Precisely because there is no certainty when the right to refuse to work may be validly exercised, employers feel it might be abused by militant workers. Their anxiety is alleviated by a set of demanding requirements which workers have to satisfy when they seek to exercise their right to refuse work. A government inspector is to be called to make a determination as to whether the workers are rightly claiming that their safety is compromised in an unacceptable manner. The empirical evidence shows that the Ministry of Labour rarely rules in favour of workers and, as a result, this protective tool, the right to refuse, is used sparingly by workers. Knowing this, it is likely that the refusing TTC workers were truly fearful.
Given the history of refusal to work cases, it was no surprise that the Ministry of Labour ruled that the TTC is providing as safe an environment as the workers can expect. Thus, the refusal to work was not protected by the legislative provisions on which the frightened workers had relied.
What this signified was that, provided that certain protections are in place, the threat of contracting COVID-19 presents no special risk to workers, not a risk that is greater than that which it is assumed the workers accepted when they took up their jobs. If that is true, why does everyone call these people who are just doing their jobs ‘heroes’? The answer has two parts.
First, despite the Ministry of Labour’s finding in the TTC case (and a similar one concerning prison guards), no one outside the ministry believes that, as a result of the virus, the risk in workplaces which put many people into contact with one another has not increased significantly. Nor do many believe that any specific precautions taken thus far will neutralize that augmented risk adequately. As it happened, the workers’ and union’s loudly voiced skepticism about the Ministry of Labour’s finding was validated by the fact that, four days after the first refusal, an employee at one of the same depots tested positive. This led to another refusal to work and then the shutting down of that facility. Given the already existing belief that workers are facing novel and grave risks, this news no doubt bolstered the appreciation of these endangered workers. Their characterization of them as heroes resonates with the larger public.
Second, and relatedly, this natural desire to label these workers as heroes suits those in power. It helps hide an ugly truth from view; if everyone thinks of them as heroes, there is a suggestion that the workers are taking terrible risks out of the goodness of their hearts. The powers-that-be know that they do not. The opposite is true. What the refusal to work actions reveal is that, unlike true heroes, these workers have never willingly agreed to put themselves in peril to rescue others in peril. To be up front and to ask this of them is socially and politically unpalatable. To be seen to be forcing them to take these unwanted risks would be even more dangerous. It is better, therefore, for everyone to believe they are doing it because they are decent, wonderful people. But the TTC refusal case is threatening to reveal a nasty truth. Once it was held that workers did not have the right to stop work they considered too risky, they were left with two options, both of them making their oppression visible.
They could just resume work (and, while working, seek to have the decision reviewed) or quit. If they quit their employment, it would be difficult for them to benefit from any employment Insurance (EI) payments, although they might be entitled for short-term and temporary relief under the federal government’s new-fangled Canada Emergency Response Benefit (CERB) regime. A grim choice would confront them. If they remain at work, they will feel they have to do so as a result of economic compulsion. They will be staying to work in conditions they do not believe to be safe, certainly not as safe as the conditions they had supposedly accepted when they took up their jobs. They will have been forced to take risks to help other people—the passengers and the people they, in turn, serve.
Calling them heroes cannot gild the lily. They are not willingly taking the risk. They are not willingly sacrificing their own safety for the sake of others. They are doing so because, like all workers deemed essential during this crisis, they are not allowed to choose. By the fortuity of being (often lowly regarded and poorly paid) health care workers, bus or train drivers, cleaners, warehouse workers, or cashiers, they are in a dilemma: they can quit and thereby protect themselves and their loved ones with whom they live and endure penury, or they can soldier on, take risks they would like to reject and have their loved ones take risks which they, in turn, never bargained-for. If they had not been classified as working in ‘essential’ services, all these workers, all these heroes, might have stood down. They might have been safer and eligible to apply to income replacement schemes. That is the key: before being called heroes, a decision was taken to label their workplaces ‘essential’, making them, as workers, justifiably subject to coercion.
In effect, the people labelled as heroes are being forced to be rescuers. Law has been turned on its head. Some might see this as a promising development: maybe we should all be forced to be rescuers. After all, in a decent society, there should be an obligation to fish that baby out of the puddle. But that misses the point. The thinking behind that rule—the rule that does not oblige anyone to rescue anyone else—is based on a logic that is crucial to capitalism. If people in need had a right to be rescued by others who have more talent or more wealth, then the owners of the means of production might have to share their wealth. There would be a push toward honouring Marx’s aspirational slogan, “From each according to his ability, to each according to his needs”. This is unacceptable to capitalism and will remain so after this pandemic is over. After all, capitalists want the principle, the one that says they owe no obligation to anyone in need, to be intact when it is all over. So, they need to hide the fact that they are waiving the rule when it suits them; that by labelling some workers essential and then calling them heroes, they are forcing some of the less well-off to serve the needs of others, a diktat no self-respecting red-blooded capitalist would ever accept.
Calling them heroes is a way to cajole these workers and perhaps to fool them and the rest of the public. The truth is they are being made sacrificial lambs on the altar of the public’s needs. The sincere thank yous, the banging of pots, and the like cannot hide the fact that, when the chips are down, Canada’s leaders are reacting as feudal lords did in 1351. That was the year when, during a catastrophic plague, the English feudal lords passed legislation forcing every person who did not own land or was a merchant or had a recognized craft, to work for any of those lords who asked them. What’s more, it also provided that these commanded workers should work for the wages that prevailed before the plague created such a high demand for their labour. No one called those compelled workers heroes. They were recognized as serfs. Eventually they rebelled, violently.
Harry Glasbeek is a Professor Emeritus and Senior Scholar, Osgoode Hall Law School, York University. His latest books are Class Privilege: How Law Shelters Shareholders and Coddles Capitalism (2107) and the follow-up, Capitalism: A Crime Story (2018) both published by Between the Lines, Toronto. Professor Glasbeek is a frequent contributor to Canadian Dimension.